Buildings had determined that legal non-conforming commercial use was discontinued for one condo despite presence of two other nonconforming businesses in building.The owner of a vacant commercial unit in the ground floor of a residential condominium at 25 Central Park West in Manhattan sought to occupy the space with an eating and drinking establishment. The building includes two other ground floor commercial condos. The vacant condo faces West 62nd Street and was occupied by a Gristedes supermarket from the 1950s until 2007. The other two condos face West 63rd Street and have been occupied by a drug store and a dry cleaners for several decades. The portion of the building with the commercial condos is located in an R10A zoning district and all three uses operated as legal non-conforming Use Group 6 commercial uses.

The proposed eating and drinking establishment would not be permitted as-of-right, so the owner of the vacant condo sought confirmation from Buildings that the nonconforming commercial use had not been discontinued. Buildings determined that because the condo had been vacant for more than two years, the non-conforming supermarket use had been discontinued and the owner would need to find a conforming use for the space.

The vacant condo owner and the other two commercial condo owners appealed Buildings’ determination. They cited the section of the zoning resolution pertaining to the discontinuance of nonconforming uses and argued that all or substantially all of the nonconforming uses in the entire building would need to be discontinued for more than two years before the building would be limited to only conforming uses. Because the conforming drug store and dry cleaning uses remain, a non-conforming commercial use should be permitted in the vacant condo.

Buildings’ countered that the non-conforming use in each unit should be examined independently from other non-conforming uses in the building. According to Buildings, if substantially all of the nonconforming use in an individual unit was discontinued for more than two years, that unit must then be used for a conforming use. According to Buildings, considering all three nonconforming uses together would be too broad of an interpretation of the zoning resolution and contrary to the public policy of reasonably restricting and ultimately eliminating non-conforming uses.

BSA granted the appeal, finding that a plain reading of the cited zoning text reflects that it was necessary to consider all non-conforming uses within a building together when determining whether the uses have been discontinued. BSA conceded that the zoning resolution did not specifically address situations where there are multiple independent stores in one building, but if the drafters of the zoning resolution intended the discontinuance analysis to apply to each unit rather than the building as a whole, they could have included more specific language.